THE OKLAHOMA BAR JOURNAL 24 | NOVEMBER 2022 some functions as “governmental” versus “proprietary” functions. Governmental functions were identified as those functions that embodied policy-making decisions with suit not being allowed in those instances, while proprietary functions were identified as operational-type functions for which suit could be allowed. The lines between these two categories blurred over the years and became more and more heavily scrutinized by legal scholars and the courts.5 In 1983, the Oklahoma Supreme Court in Vanderpool determined the doctrine of sovereign immunity was no longer viable in the state and ruled for a plaintiff who suffered a severe injury from a rock thrown by a mower that was mowing the grounds of the Oklahoma Historical Society – an act of clear negligence that resulted in severe injury. Interestingly, the Oklahoma Supreme Court made its ruling prospective to Oct. 1, 1985, for future cases to give the Oklahoma Legislature an opportunity to address the doctrine of sovereign immunity. Although the Legislature had previously adopted the Political Subdivision Tort Claims Act in 1978 addressing this same subject, it did not take the Oklahoma Legislature long to respond to the Oklahoma Supreme Court’s invitation to take a second look, and the OGTCA was adopted and codified in Title 51, Section 151-Section 172 of the Oklahoma Statutes in 1985. The OGTCA6 expressly provides: The State of Oklahoma does hereby adopt the doctrine of Sovereign Immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution.7 As political subdivisions, the OGTCA generally immunizes municipalities from tort liability. To determine whether a city or town is immune from liability, the complained-of-conduct or occurrence must fall within the definition of a tort itself. A “tort” is “a legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.”8 Cities may commit a tort against an individual or other entity when the harm is committed “through an employee, agent, or instrumentality under [municipal] control.”9 However, under the provisions of the OGTCA, a city will not be liable to the injured party in certain circumstances.10 Torts may be intentional, unintentional (negligence) or strict liability, but to be actionable, all require some sort of harm or damages. An intentional tort may be committed by a municipality when the government actor had knowledge with substantial certainty that a tort would occur. An unintentional tort may occur when a municipality fails to use reasonable care in the performance of a duty owed to a potential plaintiff.11 This is known as negligence, and the claim requires the plaintiff to prove that the city’s conduct was the cause of their damages. Strict liability torts impose liability without regard to the actor’s state of mind. For each type of tort, the OGTCA allows sovereign immunity to be raised as a defense.12 Torts may be intentional, unintentional (negligence) or strict liability, but to be actionable, all require some sort of harm or damages.
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